LIVERETAIL SUBSCRIPTION AGREEMENT

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ACCOUNT ESTABLISHMENT PROCESS, YOU (“SUBSCRIBER”) AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS "AGREEMENT") GOVERNING YOUR USE OF THE SERVICE PROVIDED BY LIVERETAIL (THE “COMPANY”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. 

1. Scope. This Agreement pertains to Subscriber’s use of the Company’s proprietary software-as-a-service offering known as LiveRetail and referred to herein to as the “Service”. The Service enables the automated production and optional execution of advertising and marketing materials with respect to products and services that are offered to the public.  This service includes the creation, production, media buying, data purchasing, trafficking, targeting, distribution, reporting and optimization to streamline the running of Advertising and Marketing campaigns.

2. Certain Defined Terms.
   
   
   1. "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
   2. “Product and Brand Content” means all information, data and other material relating to a product, service or brand that is uploaded to the Service by any user thereof or otherwise available from the Service.
   3. “Service-Generated Ad” means each unique advertisement, item of marketing material or other promotional communication created by Subscriber through use of the Service, including any modification or derivative thereof, whether or not such modification or derivative was created through use of the Service.

3. License Grant and Restrictions. Company hereby grants Subscriber a limited and non-exclusive right to access and use the Service, on and subject to the terms and conditions of this Agreement, solely for the purposes of advertising, marketing and promoting Subscriber’s own products and/or brands.  All rights not expressly granted to Subscriber herein are reserved by Company.

4. Product and Brand Content.
   
5. By virtue of its subscription to the Service, Subscriber shall have the right to use, copy, redistribute, modify and transform their Product and Brand Content.

5. Financial Arrangements.
   
   
   1. In each case in which Subscriber uses the Service to place any Service-Generated Ad for production or publishing across any media, advertising platform, networks or distribution mechanism, Subscriber acknowledges that the cost thereof will include a ten percent (10%) fee to which the Company is entitled for its provision of the Service.

1. In the event that Subscriber places any Service-Generated Ad for production or publishing across any media, advertising platform, network or distribution mechanism by any means other than through the use of the Service, Subscriber shall pay to Company an amount (the “Other Channel Fee”) equal to ten percent (10%) of the total amount spent during each calendar month for the placement of such advertising. The aggregate of all Other Channel Fees in respect of each calendar month shall be due and payable to the Company no later than thirty (30) days following the end of such calendar month. Each such payment shall be accompanied by a statement that sets forth in reasonable detail the basis upon which the amount of the Other Channel Fees has been calculated. During the term of this Agreement and for a period of three (3) years thereafter, Subscriber will maintain complete and accurate books and records regarding Subscriber’s Other Channel advertising and the media spend associated therewith.  During such period, Company will have the right to inspect and audit such books and records for the purpose of confirming Subscriber’s compliance with the terms of this Section 5(b).

6. Term and Termination. The term of this Agreement shall remain in effect for so long as Company provides the Service and Subscriber uses it. Company, in its sole discretion, may terminate Subscriber’s password(s), account(s) or use of the Service if Subscriber breaches or otherwise fails to comply with this Agreement. The provisions of this Agreement shall survive the termination of this Agreement to the extent necessary to give effect to the intrinsic meaning or purpose of such provisions.

Disclaimer; Limitation of Liability.

1. The Service is provided “as is” and there are no warranties, claims or representations made by Company, either express, implied or statutory, with respect thereto including warranties of quality, performance, merchantability, or fitness for a particular purpose, nor are there any warranties created by course of dealing, course of performance, or trade usage. Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained herein, Company makes no warranties, claims or representations with respect to, and shall have no liability in respect of, the accuracy, quality, integrity, legality, reliability and appropriateness of, or intellectual property ownership of or right to use, any Product and Brand Content that may be available from the Service.  

1. Except for a party’s accrued payment obligations pursuant to Section 5 above, in no event shall either party's aggregate liability hereunder exceed the sum of one hundred dollars ($100). In no event shall either party be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or similar damages.  The foregoing limitations of liability shall not apply to (i) amounts for which a party is liable pursuant to its indemnification obligations pursuant to Section 8 below or (ii) damages in respect of fraud or willful misconduct.

7. Indemnification.  
   
8. Subscriber shall indemnify and hold Company harmless from and against any and all third party claims, actions and proceedings (“Claims”), and all losses, damages, liabilities, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) resulting therefrom (collectively, “Damages”), arising out of or in connection with: (i) a claim alleging that any Product or Brand Content provided to the Service by Subscriber infringes the rights of, or has caused harm to, a third party; or (ii) a claim arising from the breach by Subscriber of this Agreement, provided in any such case that Company (a) gives written notice of the claim promptly to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Company of all liability and such settlement does not affect Company’s business or the Service); (c) provides to Subscriber all available, relevant information and reasonable assistance; and (d) has not compromised or settled such claim.
9. Company shall indemnify and hold Subscriber harmless from and against any and all Claims and Damages arising out of or in connection with (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent, or a trademark of a third party; or (ii) a claim arising from breach of this Agreement by Company; provided that you (a) promptly give written notice of the claim to Company; (b) give Company sole control of the defense and settlement of the claim (provided that Company may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Company all available, relevant information and reasonable assistance; and (d) have not compromised or settled such claim. Company shall have no indemnification obligation, and Subscriber shall indemnify Company pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of third party products, service, hardware or business process(es).
10. Modification to Terms. Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Subscriber is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Subscriber’s consent to such changes.

9. Miscellaneous. This Agreement shall be governed by the laws of the State of Florida, without regard to any conflict of laws or principles that would result in the application of the laws of any other jurisdiction.  Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in the District of Florida.  Company shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any circumstance or cause beyond the reasonable control of Company. This Agreement constitutes the entire agreement, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter hereof.